Tuesday, August 26, 2008

Like the dioceses in New York, the dioceses in Virginia operate under a special statute that affects the outcome of any litigation with their parishes. The so-called "Division Statute", section 57-9 (a) of the Virginia Code, provides:

If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court's civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.

Eleven parishes in the Diocese of Virginia held votes in 2006 pursuant to this section, and the tally was overwhelmingly in favor of leaving ECUSA in each instance. They entered into a protocol with the Diocese, pursuant to which they would file the results of the elections with the Circuit Court as required by the statute, but would not take further steps to leave pending negotiations with the diocese for a settlement with regard to their respective properties.

Once again, as in Pittsburgh, the Presiding Bishop and Primate of ECUSA took matters into her own hands---because, as she later admitted in her deposition, she could not agree to allow the parishes to "go into competition" with the Episcopal Church (USA). She instructed the Bishop of Virginia, the Rt. Rev. Peter James Lee, to file responses to the petitions in order to contest them in court, and she had her own Chancellor file separate suits against the eleven parishes.

All of the cases were consolidated in one action in Fairfax County Circuit Court, under the Hon. Randy Bellows. In a series of very readable and illuminating decisions, he found that the parishes had each met all of the statutory requirements, and rejected all of ECUSA's and the Diocese's constitutional arguments against the Division Statute. The Diocese and ECUSA asked the Virginia Supreme Court to review his final judgment in the case, and that Court's review resulted in a reversal of his decision. Their ruling essentially threw out any part of the case that was based on section 57-9 (a).

On remand to Judge Bellows, he now decided slavishly to follow his (many would say: "unique") interpretation of Virginia Supreme Court precedent, and to uphold the claims of ECUSA and the Diocese based on many years of the parishes supposedly acquiescing to diocesan control over their property. While refusing to give any legal effect under Virginia law to the Dennis Canon, Judge Bellows instead found that the Dennis Canon was unnecessary: the parishes in question, he said, had long since subjected all of their properties and assets to an implied trust in favor of ECUSA and the Diocese of Virginia.

Following his decisions, all of the parishes with the exception of The Falls Church (who would be required by Judge Bellows' decision to hand over property worth in excess of $10 million, plus bank accounts of nearly $3 million), threw in the towel, and left their properties to the Diocese of Virginia, who had no sufficient congregations with which to populate them. The Diocese has nevertheless put a brave face upon the developments, and claimed that is it is doing "new things" with all of the properties it grabbed through the litigation.

The Falls Church petitioned the Virginia Supreme Court to review Judge Bellows' decision as applied to it. The Attorney General of Virginia joined in the request for review insofar as Judge Bellows' judgment could be interpreted to require the turnover to the Diocese of parish pledges which were specifically designated not to go to the Diocese (or consequently, via diocesan contribution, to ECUSA). Their petition will be heard on October 16, 2012 (the same day as the appeals to the Supreme Court of Texas are heard n the Fort Worth and San Angelo cases). I shall post here an update after we know whether the Virginia Supreme Court decides to accept the case for review.

You can read more detail about the background of the litigation in these posts:

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